Profiteering from Pandemic
The prevailing pandemic situation in the world has taught us a big lesson that the survival of humanity is much more important than economics. Therefore, it’s time to protect the health of the people all around the world and place the patentee and trade secret protection below peoples’ life. — Dr. Ashwani Mahajan
Today, coronavirus, also known as Chinese or Wuhan virus, has engulfed almost the whole of humanity. Due to the huge number of people losing battle for life, caused by this pandemic, there is an increasing risk not only among the people who are infected, but also those who are not. Health facilities appear to be dwarfed in comparison to the severity of pandemic. In such a situation, there is an acute shortage of beds, ICUs and ventilators in hospitals. Due to severity of crisis, there is a huge pressure on oxygen, medical devices, medicines etc. Although the government has made efforts to ensure availability of beds, medicines, oxygen, those efforts are far too little in the face of the current tragedy. Countries like America, England, Italy, Brazil etc have had gone through the similar situations.
In India, there is no dearth of people earning profits by taking advantage of people's compulsion in this type of tragedy. We hear that not only the sellers of medicines, oxygen, oximeters etc., hospitals are also not behind in profiteering. The only way to solve this crisis is to make available adequate equipment and medicines for treatment.
Though, the role of small players can’t be denied, so far as the shortage of medicines, their high prices and high profiteering are concerned, global multinational companies are much to be blamed. Due to patents and other intellectual property rights (IPRs), these companies command monopoly rights over production of essential medicines and also medical devices. Due to these laws, the production of these medicines and devices remains concentrated in a few hands, and this makes these companies to charge high prices. Recently we saw that the injection named Remdesivir was priced between Rs 3000 and Rs 5400. Though, after government’s intervention its price has been reduced, the availability of these medicines remains a major issue Black marketing of these medicines is yet another issue. Many of our companies can produce these medicines and make them available at affordable prices, provided they are given licence by the government.
It is true that these companies have patents for these medicines, but still the Government of India can not only increase the production of these medicines, but can also give relief to the people by drastically reducing prices. Its notable that while amending Indian Patent Act 1970 in 2005 due care was taken to include the provision of compulsory licence which is capable to address public health concerns in a situation of public health emergency or pandemic or a situation which the government deems fit for invoking these provisions.
There is a provision for grant of compulsory license as per Chapter 16 of the Indian Patent Act (Amended)1970 and TRIPS provisions. A compulsory license means a license issued by the government, that is, permission according to which a producer is given the right to make, use and sell a patented product without the permission of the patent holder. This means that in the context of medicines, namely, Remdesivir and other medicines, currently used to treat persons infected with Covid-19, if the government issues a compulsory license, then any pharma manufacturer in India can manufacture the same by giving a reasonable royalty to the patent holder. Manufacturers who produce these medicines will have the right to use and sell that product.
Experts believe that Indian Patent Act (Amended) 1970, gives right to the government to issue compulsory licenses under sections 92 and 100 to produce vaccine and medicines. The government may voluntarily (suo moto) issue a compulsory license using these clauses for non-commercial government use in view of 'national calamity' or 'extreme urgency'.
Significantly, these companies are trying to make profits from the worst pandemic faced by the humanity. There are also reports of massive hoarding of Remdesivir by the Gilead Company. In such a situation, it has become extremely necessary to introduce compulsory licenses for the production of these drugs and vaccines in India.
Although the Government of India, along with South Africa, have also approached the World Trade Organization for relaxation of the TRIPS provisions, after initially opposing the proposal countries like USA, Europe and Japan are also falling in line of the proposal. Significantly, the Doha Ministerial Conference of the World Trade Organization came out with ‘The Doha declaration on the TRIPS and public health’, in which the sovereign rights of governments were recognized that in case of any emergency or extreme urgency, member countries can bypass TRIPs provisions. The declaration allowed member countries to “determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises”.
Looking at the likely positive effect of such a move on humanity, a group of lawmakers in the US have also urged President Joe Biden to support India’s waiver proposal. Nearly 300 members of the European Parliamentarians urged the European Commission to support the waiver proposal. Recently, 100 Nobel laureates and former heads of the states including the former prime minister of the UK Gordon Brown requested the US president to support the waiver proposal. Some parliamentarians have even accused UK government to be playing on tunes of pharma companies.
The prevailing pandemic situation in the world has taught us a big lesson that the survival of humanity is much more important than economics. Therefore, it’s time to protect the health of the people all around the world and place the patentee and trade secret protection below peoples’ life. Though, efforts of the government at trade diplomacy level are commendable, it would be appropriate at this time that government of India takes the following steps to ensure access and availability of the medicines and vaccines required urgently in our fight against COVID19.
• Allow more generic companies to produce Remdesivir under the government use license (Section 100) of the Indian Patents Act with a price ceiling.
• Issue as many government use licenses to produce Tocilizumab and Sarilumab and other critical medicines required to save the life of COVID 19 patients suffering from cytokine storm.
• License vaccine production widely to more pharma companies with technological capabilities, instead of a few companies.
• Provide the regulatory clearance to start the local production of the Sputnik V vaccine. qq
The Author is Professor, PGDAV College, University of Delhi.